Yale responds to Devos’ proposed Title IX regulations

Hours after Secretary of Education Betsy DeVos released new Title IX guidelines — which could drastically alter how colleges and universities respond to sex discrimination — Yale reaffirmed its commitment to preventing sexual assault and fairly adjudicating sexual misconduct complaints in a statement posted on the University’s website on Nov. 16.

The proposed rules would replace Title IX guidelines created under former U.S. President Barack Obama, which DeVos rescinded last September, and narrow the scope of situations that require universities to respond to sexual misconduct complaints under Title IX policy. The proposed plan — citing Supreme Court precedent and case law — also narrows the definition of sexual harassment to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Obama’s guidelines defined sexual harassment more broadly as “unwelcome conduct of a sexual nature.” The new guidelines could pose a threat to Yale’s own adjudication procedures for cases of sexual misconduct.

“As the University reviews the proposal, we reaffirm Yale’s commitment to work to prevent sexual and gender-based harassment, to serve as a model for the community engagement, education, and prevention, and to provide fair and effective processes for the adjudication of complaints,” Yale’s statement reads. “Beyond complying with its legal obligations, as a leading academic institution Yale is intent on creating and sustaining a community-wide culture of respect and inclusion, where all members feel safe and supported as they pursue their academic, professional, and personal aspirations.”

The Department of Education’s new plan is subject to a 60-day comment period for public feedback. If enacted, the proposed regulations will operate as law — unlike the less formal Obama-era guidelines. According to Yale’s statement, the “higher education community” will comment on the new rules, and the regulations may be further modified based on public comments.

University Title IX Coordinator Stephanie Spangler said she had no immediate specific comments and that the University will carefully review the proposed regulations.

“In any event, [we] will strongly uphold our commitment to prevent and address sex-based discrimination, including all forms of sexual misconduct, at Yale,” Spangler wrote in an email to the News.

Yale College Dean Marvin Chun declined to comment before studying and discussing the proposed regulations further.

Under the new regulations, universities would only be obligated to respond to alleged incidents that occurred within a school’s own programs or activities. These allegations could also include off-campus incidents that took place in a school-owned building or at an event funded, sponsored, promoted or endorsed by the school. The regulations would only mandate that schools would only be mandated to respond to incidents they have “actual knowledge” of, or cases reported to a university official with “authority to take corrective action,” like a Title IX coordinator. Yale currently has a variety of mandatory reporters, including Communication and Consent Educators. Under the potential new law, universities would also be required to allow cross-examination at hearings, a policy that Yale does not currently use.

The federal education department defended the new guidelines as better aligned with the “text and purpose of Title IX” and judicial precedent than current regulations, and said students reporting sexual harassment will have more control over the process under the new rules.

Students and alumni interviewed by the News denounced the proposed regulations for rolling back protections for victims of sexual misconduct.

Abby Leonard ’21, co-president of Students Against Sexual Misconduct, said her organization and its board members plan to vocalize their opposition to the “abhorrent changes” during the comment period.

“These proposed changes under the DeVos administration would regress years of progress for survivors’ rights,” Leonard wrote in an email to the News. “That reporting rates for sexual misconduct including sexual harassment are incredibly low, these changes lack any reasoning or rationale other than to further silence survivors.”

Ann Olivarius ’77 LAW ’86 SOM ’86, a lawyer who specializes in Title IX and sex discrimination cases, criticized DeVos’ proposed changes for protecting students accused of misconduct even though the system “already protects the accused.” In 1977, Olivarius was a plaintiff in a landmark suit against Yale, which ruled for the first time that sexual harassment was a form of sex discrimination prohibited under Title IX.

According to Kathryn Pogin LAW ’20, requiring live cross-examination at hearings would be harmful to both complainants and respondents, especially to students who cannot afford to hire high-powered attorneys to serve as an advocate during hearings. Alyssa Peterson LAW ’19 agreed that live cross-examination is often traumatizing to complainants, and this rule will likely deter students from reporting sexual misconduct to the University.

Peterson said that while testing witnesses’ credibility is important, universities can accomplish this goal by having parties answer written questions instead of in-person cross-examination. She contended that the new guidelines would turn Title IX into a “quasi-criminal justice system” on college campuses, contradicting the law’s original intentions. Still, the education department has argued that the new rules restore the rights of students accused of sexual misconduct to due process.

Many Yale community members urged the University to levy its institutional influence to oppose the new regulations proposed by DeVos.

“The sole goal of the DeVos rule is to drive down the number of reports and to make the campus system more like the criminal system, which operates to the disadvantage of victim and accused people alike,” Peterson wrote in an email to the News. “If Yale, in its public comment, prioritizes its bottom line over the well-being and equality of its students, the administration can expect to hear from us.”

Olivarius also called on Yale to “tackle the unkindness and bias in DeVos’ proposed rules” and “take a leadership role” in proposing alternative regulations that protect victims of sexual misconduct.

Yale has lobbied against the Department of Education’s efforts to protect the rights of the accused since DeVos announced plans to rescind Obama-era Title IX guidelines last fall.

The Obama-era guidelines, sent in the form of a “Dear Colleague Letter” in 2011, mandated that all colleges and universities use a lower standard of proof — a “preponderance of evidence” — when adjudicating cases of sexual assault. While DeVos’ proposed regulation would allow schools to choose between using the lower standard of proof and a higher standard, Yale is required under Connecticut law to use the preponderance of evidence standard, according to the University’s statement.

In 2011, the Department of Education’s Office for Civil Rights opened an investigation into complaints that Yale had breached Title IX by allowing a “hostile sexual environment” on campus. Following the investigation, Yale created the University-wide Committee on Sexual Misconduct, a group to which students across the University can report cases of sexual misconduct.

Title IX, passed among the Education Amendments of 1972, protects people from discrimination on the basis of gender and sex at institutions that receive federal funding.